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JobKeeper Explained: Changing Workplaces

Published August 25, 2020 (last updated September 23, 2020) Author: Employsure
employer using jobkeeper enabling directions to change the workplaces of his employees

Employsure is a secular business, but we can say that JobKeeper has been a godsend for small businesses during COVID-19.

The program isn’t perfect, but what it has done is a miracle. It has subsidized the wages of thousands of business and their employees, taking a huge financial burden off businesses, keeping employees in a job and the economy ticking over.

JobKeeper also came with provisions to assist employers more flexibility in managing their business during COVID-19. These provisions are known as JobKeeper Enabling Directions, and in this blog we will discuss how an employer can direct an employee to change their workplace using one of these Directions.

Changing an Employee’s Location of Work

The amended JobKeeper scheme allows qualifying and legacy employers to direct an employee or employees to change their workplace, which can include asking to work from home.

Employers may find this provision useful, for a variety of reasons. It allows employers to better manage their different workplaces – say, if the employer owns a string of cafes. Employers could use this direction manage staff workloads, or to transfer staff from one workplace to another in case they decide to or have to temporarily close one workplace.

This provision could also be used to send all or some of your workforce to work from home. An employer may choose to do this so they can temporarily close the office or main workplace, or perhaps so they can better manage social distancing with less staff being in the same physical space.

It’s easy to see how useful giving such a JobKeeper Enabling Direction could be.

However, before you jump the gun and give out this direction, you must satisfy the criteria.

Am I Eligible to Give This Direction?

The most important criterion is perhaps a bit obvious, but it needs to be stated nevertheless: an employer, and the employee(s) subject to this Direction, must be under the JobKeeper scheme or qualify as a legacy employer. This is an employer who no longer qualifies for JobKeeper, but did before and they satisfy the legacy employer turnover test.

A JobKeeper direction can only be given to employees who are qualifying or legacy employers under the JobKeeper scheme. If you are no longer eligible for JobKeeper and do not satisfy  the criteria to be a Legacy Employer,  you can come to an individual agreement with these employees to change their employment conditions, such as work location. Contact the Advice Team to assist you in how to have these conversations with non-JobKeeper employees.

Giving An Enabling Direction To Change Location Of Work

Qualifying Employers

To give a JobKeeper enabled direction to change work location, Qualifying Employers must make sure:

  1. The implementation of the Direction must be safe
  2. The Direction must be reasonable in all the circumstances eg does not require the employee to travel a distance that is unreasonable
  3. The new place must be suitable for the employees duties
  4.  
  5. You must consult the employee (or their representative) about the Direction
  6. Before giving the Direction, the employee must be given 3 days’ written notice of your business’ intention to give the Direction (or earlier, if genuinely agreed with the employee).
  7. The Direction must be in writing

Legacy Employers

To give a JobKeeper enabled direction to change work location, Legacy Employers must make sure:

  1. Your business does not qualify for the JobKeeper 2.0 scheme but has satisfied the 10% decline turnover test and has a certificate from an authorised taxation agent confirming this for the relevant quarter
  2. The implementation of the direction must be safe
  3. The Direction must be reasonable in all the circumstances eg does not require the employee to travel a distance that is unreasonable
  4. The new place must be suitable for the employees duties
  5. Before giving the Direction, the employee must be given 7 days’ written notice of your business’ intention to give the Direction
  6. The Direction must be in writing

What Process Should I Follow?

As you can see in the eligibility rules above, there is a requirement for employers to consult with employees, and to hand out written notice and documentation to them. Here’s a basic structure for employers, that may help give you an idea of how you should do this in a practical sense:

Consider the Circumstances

Prior to meeting with the employee you should fully consider the consequences of making an enabling direction such as what is the employees role, can it be done at another location eg at another business location or from home?

If yes, can this be done safety from home? What can you do as the employer to ensure that the role and duties can be done safely from this new location and is it feasible?

If the role cannot be done from home, but can be done at another business location, consider how far the new location is from the employees normal place of work, including the distance from the employees home. Also consider how COVID-19 would affect the employee getting to the new location eg catching public transport. With all of that in mind, would it be unreasonable to require the employee to travel to the new location?

Consult Your Employee(s)

Firstly, get your employees together in a group or individually and discuss the reasons behind your proposal to move them to a different workplace, and discuss your rights and their rights with regards to the JobKeeper Enabling Direction.

Give Reasonable Notice

Once you have consulted your employees, you can then give notice to your employees. This notice has to be written, as required by the JobKeeper legislation.

The minimum notice period is 3 days’ notice for Qualifying Employers and 7 days’ notice for Legacy Employers. However, the employer and employee can ‘genuinely agree’ on a shorter notice period.

Get Advice

Most importantly, it is recommended employers seek advice from a workplace relations expert before enacting any JobKeeper Enabling Direction. Not only is this legislation temporary and soon subject to a change, COVID-19 generally has seen a series of rapid legislation changes that have impacted workplace relations and workplace health and safety.

Get Workplace Advice Now

Have a question about the contents of this article, or about JobKeeper in general? Call us now for some free, initial advice.

About Employsure

With over 25,000 clients, Employsure is one of Australia’s largest workplace relations specialists.

We help small business owners better understand workplace relations and WHS legislation, giving them peace-of-mind that their business is getting backed by expert advice.

Frequently Asked Questions 

  • How Much Notice Do I Need to Give My Employee Before Asking Them to Work at Home?

    Under the JobKeeper legislation, an employer must give a minimum of 3 days’ written notice of your business’ intention to give the Direction. This notice can be earlier, if genuinely agreed with the employee.

  • What Factors Should I Consider Before Giving Direction for My Employees to Work at Home? (List)

    • If your employee’s role can be performed from home or another location
    • Whether you are eligible to give the Direction
    • Whether your employee is eligible to receive the Direction
    • Whether it is safe and suitable for your employee to work from home or another location
    • Is it reasonable to require your employee to travel a distance to a new location during the pandemic?
    • Whether your employee has the equipment or capability to work from home
  • Who Is Responsible for Ensuring My Employees Have a Safe Workstation Set Up at Home?

    An employer and employee are both responsible for workplace health and safety when working from home. That is not to say they are equally responsible, but both parties do have a part to play in health and safety. Ultimately, an employer has a duty of care towards their employee and they will be expected to take all reasonable steps towards ensuring an employee’s home workstation is safe.

  • Can I Direct Employees to Work from A Different Location Without Using JobKeeper Enabling Directions?

    You cannot unilaterally direct an employee to change locations. You must consult with the employee and come to a mutual agreement which should be backed up in writing. If the employee does not agree, the location cannot be changed and they cannot be disciplined for not agreeing to the change.

  • Can I Direct My Workers Back to the Usual Workplace?

    Yes you can. You can simply withdraw your JobKeeper Enabling Direction if you have issued a Direction to relocate your workers, if you wish for them to return to their usual workplace.

    The above cannot be done if you have come to a mutual agreement with your employees outside of JobKeeper to change the location of work. You will need to consult with the employee again and come to another mutual agreement to change the location of work. If the employee does not agree, the location cannot be changed and they cannot be disciplined for not agreeing to the change.

  • Where Can Employers Get More Information On Working From Home?

    Employers can get more information on working from home from visiting Employsure.com.au or by calling the Fair Work Helpline on 1300 207 182. Employsure is Australia’s largest advice firm for small businesses on employees and WHS.

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